Cultural property trafficking survey appears to be little more than an exercise in complacency and cynicism as EC plans damaging new law

COMMENT: I have no idea how much it has cost the European Commission to conduct the latest survey into the illegal importation of cultural goods used to finance terrorism, but it is clearly a shocking waste of money, as its own conclusions show.

The failure to check facts or take note of detailed submissions from industry experts has been so dire in this case one can only assume that this ‘consultation’ was a window dressing exercise in cynicism or a masterpiece of incompetence. Either way, the last thing it should be used for is a template for new and damaging legislation.

To show you what I mean, let’s take the ‘Fact Sheet’ that the Commission published on July 13 to accompany its press release announcing the crackdown.

Although neither the EU nor the US has conducted a single successful prosecution or seized any material confirmed to be linked to ISIS and terrorism in Syria and Iraq, the release itself focused on how the Commission is taking action to cut off such sources of financing.

To illustrate the scope of the problem, the ‘Fact Sheet’ asks the following question:

What is the value of the cultural goods that are imported illegally to the EU?

It then sets out the following answer:

‘The value of the illegal trade in cultural goods is difficult to assess, since it is a criminal activity.

‘Reliable data and instruments for measuring illicit commerce are scarce. According to Interpol, however, the black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods. Some estimates suggest that in 80-90% of sales of antiquities, the goods have illicit origins. Another study suggests that the total financial value of the illegal antiquities and art trade is larger than any other area of international crime except arms trafficking and narcotics and has been estimated at €2.5 – €5 billion yearly.

‘UNESCO has also stated that, together with the drugs and armaments trades, the black market in antiquities and culture constitutes one of the most firmly rooted illicit trades in the world.’

This seems credible enough until you check what Interpol actually says and where the Commission has sourced the other figures it quotes. Let’s take these in turn:

In quoting Interpol, the ‘Fact Sheet’ helpfully includes a link to the relevant page on the Interpol website. However, on clicking through to that link, although it makes the statement as reported, Interpol then contradicts this in its Frequently Asked Questions section on the same page. Click the link and it states the following:

Is it true that trafficking in cultural property is the third most common form of trafficking, after drug trafficking and arms trafficking?

‘We do not possess any figures which would enable us to claim that trafficking in cultural property is the third or fourth most common form of trafficking, although this is frequently mentioned at international conferences and in the media.

‘In fact, it is very difficult to gain an exact idea of how many items of cultural property are stolen throughout the world and it is unlikely that there will ever be any accurate statistics. National statistics are often based on the circumstances of the theft (petty theft, theft by breaking and entering or armed robbery), rather than the type of object stolen.

‘An enhanced information exchange could assist INTERPOL in determining the importance as well as the trends and patterns of this type of crime.’

This is followed by:

What is the cost of trafficking in cultural property?

‘It is not possible to put a figure on this type of crime, partly for the reasons mentioned above and partly because the value of an item of cultural property is not always the same in the country in which it was stolen and the destination country. Also, thefts of such property are sometimes not reported to the police because the money used to purchase them had not been declared for tax reasons or because it was the proceeds of criminal activity.

‘It is also impossible to assess the financial extent of the losses caused by clandestine archaeological excavations. Such excavations often only come to light when looted items appear on the international market. Illegal excavations destroy the scientific context of the single finds and seriously jeopardize future archeological research of the sites.

‘Even without considering the economic impact behind the illicit traffic of cultural goods, it is important to consider the damage caused by this type of crime to civilizations and their history. The cultural heritage of a country constitutes its identity. A country that is deprived of its cultural heritage because it is being looted or stolen is a country that is losing its identity and every component that is linked to it: national belonging, patriotism or national pride.’

And this is followed by:

Which countries are most affected by this type of crime and which objects are most frequently stolen?

‘Due to the lack of reliable and internationally harmonized statistics on cultural property thefts, it is impossible to identify one country being more affected than the others.

‘However, it is obvious that the following regions are particularly affected by this type of crime:

Europe,

Latin America,

Middle East,

North and Sub-Saharan Africa,

South East Asia.

‘The majority of thefts are carried out from private homes. Museums and places of worship are also among the common targets.

‘The type of objects stolen varies from country to country. Generally speaking, paintings, sculptures and statues, and religious items are very sought after by thieves.

‘However, no category is spared, including such diverse items as archaeological pieces, antiquarian books, antique furniture, coins, weapons and firearms or ancient gold and silverware.’

Conflicting claims on trafficking of illicit cultural property that don’t add up

This detailed advice leads me to ask Interpol why on the page it links from it states: “The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods.” By its own admission, it can’t possibly know this, and so neither can the Commission.

As noted, the Commission further states: “Some estimates suggest that in 80-90% of sales of antiquities, the goods have illicit origins. Another study suggests that the total financial value of the illegal antiquities and art trade is larger than any other area of international crime except arms trafficking and narcotics and has been estimated at €2.5 – €5 billion yearly.”

Although it does not say where these estimates and study come from, it immediately goes on to quote UNESCO, stating: “UNESCO has also statedthat, together with the drugs and armaments trades, the black market in antiquities and culture constitutes one of the most firmly rooted illicit trades in the world.”

Again, it gives a helpful link through to a UNESCO report (The fight against the illicit trafficking of cultural objects the 1970 convention: past and future), which does identify the study and estimates.

The Facts and Figures listed on page 2 of the UNESCO report include references to values for illicit trafficking ranging from $2 billion to $6 billion. The footnotes attribute the $2 billion figure to the November 24, 1990 Independent newspaper article Great Sale of the Century by Geraldine Norman. However, for two reasons it is clear that UNESCO has never checked this source – and neither has the Commission. The first is that the article, which you can read here, includes no figure whatsoever, and the second is that in referring to it, UNESCO made the same mistake that Brodie, Doole & Watson made in referring to it in their 2000 report, Stealing History: The Illicit Trade in Cultural Material. On page 23 of that report, it states: ‘Geraldine Norman has estimated that the illicit trade in antiquities, world-wide, may be as much as $2 billion a year’. On page 60 of the report, under the relevant footnote, it gives the source as follows: Norman G., Great sale of the century. Independent, 24 November 1990 – exactly the same reference as UNESCO gives, which the Commission then quotes. However, the article itself is actually titled Great sale of the centuries, which indicates that in conducting the research for the Commission Deloittes have simply lifted the UNESCO report without checking its sources, while UNESCO, in turn, lifted the claim from the Brodie, Doole & Watson report without ever checking the Norman article.

No need for this as correct information was already available

What makes this all so unnecessary is that I personally supplied UNESCO with all the relevant information correcting these and other mistakes in March last year on behalf of the International Association of Dealers in Ancient Art (IADAA), with all the relevant links for independent verification, and it was posted on the UNESCO website, where it is still available.

So what we actually have presented as ‘Facts’ by the Commission to justify its position is an unchecked quote based on a 17-year-old report, which inaccurately bases its claims on a newspaper article that was already ten years old at the time and which says nothing of the sort anyway.

What Geraldine Norman’s 27-year-old article does state is her unsubstantiated opinion that “80 per cent of all antiquities that come on the market have been illegally excavated and smuggled from their countries of origin” – hence the additional figures quoted by the Commission.

The $6 billion figure quoted by the Commission also comes from the UNESCO report, but here things get even more confused. UNESCO states that the figure comes from “Research conducted by the United Kingdom’s House of Commons on [sic] July 2000”. However, the footnote referencing this quotes a 2009 report in Italian by F. Isman of Milan and deals only with Italian archaeology. Again, this source has clearly not been checked.

There are another two possible sources for the $5-6 billion figure. According to James McAndrew, the former FBI agent who set up the US Department of Homeland Security Antiquities Division in 2010, the first is an unsubstantiated claim made by an official at an ICOM conference in the 1980s. The other is a misreading of the estimate of global art crime – in other words all crime associated with the entire art market, from fraud and burglary to forgery and theft, not antiquities at all – as estimated by the Art Crime Team of the FBI, although they do not say how they arrived at this figure and have now downgraded it to $4 billion to $6 billion as the video from this link confirms.

Reports show that neither Interpol nor the World Customs Organisation back the EC’s position

Section 6 of The World Customs Organisation 2015 report covered the illicit trade in cultural objects for the first time. It noted nothing linked to ISIS, but page 147 does state that one of its largest ongoing cases, Hidden Idol, has resulted in the seizure of $100 million of stolen and looted artefacts from India, Afghanistan, Pakistan and Cambodia.

This means that neither Interpol nor the WCO recognise the unsubstantiated figures adopted wholesale, without checking, by the European Commission in setting out its ‘Fact Sheet’ to justify the new measures.

Now look at the Commission’s reasons for introducing new measures. According to its ‘Fact Sheet’, “Recent reports have also shown that valuable artworks, sculptures and archaeological artefacts are being sold and imported into the EU from certain non-EU countries, with those profits potentially used to finance terrorist activities. For example, two Syrian friezes that may have been intended for criminal gain were seized at Roissy airport, France last year.”

Note the wording: Even here there is no claim that these had any link to ISIS, terrorism or even any crime at all, just that they ‘may’ have been intended for criminal gain with profits ‘potentially’ used to finance terrorism.

In October last year, 18 EU countries co-operated in Operation Pandora, a Europol-led exercise to find and seize trafficked cultural property funding terrorism. The authorities searched nearly 50,000 people, nearly 30,000 vehicles and 50 ships. They arrested 75 people and seized just over 3500 pieces of cultural property, 1000 of which turned out to have come from a single seizure from an illicit metal detectorist in Poland and largely consisted of spent rifle cartridges and rusted rifle stocks from the Second World War. Now Europol has confirmed that despite this operation targeting terrorism financing, not one item seized came from a conflict zone. So what it actually showed was what a good job existing laws are doing in keeping this stuff out of Europe – precisely the arguments that the trade had made during the consultation period, which the Commission has chosen to ignore completely.

The ‘Fact Sheet’ also airily brushes aside any concerns that dealers might have about the impact of the new law on legitimate trade, again utterly ignoring the serious concerns detailed during the consultation process.

This whole consultation process appears to be little more than a box-ticking exercise that barely nods in the direction of democracy. It smacks of the Commission deciding what it was going to do before any of this started and acknowledging that it had to be seen to go through a consultation process, which it has then gone on to dismiss out of hand.

The first indication of this cynical approach came at the very beginning.

Instead of consulting the trade on the future of the art market in Europe, the Commission consulted the Arts Council, one of the most ineffectual UK quangos around, and which has nothing to do with the art market.

Then there was the matter of timing. The decision to consult the market was taken on January 28, 2016, with a deadline for responses of May 28, and yet no one found out about the consultation until May 22, with some relevant trade associations never being approached at all.

The Commission’s own Regulatory Scrutiny Board (RSB) failed the first draft Impact Assessment submitted for the new proposals, criticising it for not clearly circumscribing the problem nor substantiating its magnitude, nor providing an adequate evaluation of the associated costs. The revised Impact Assessment, which was eventually passed, still did not give an accurate description of the relative size of the illicit market (as shown above), despite this being a significant demand by the RSB, nor did it provide the other relevant statistical information the RSB asked for, nor a clear view of the magnitude of the problem. So one wonders how the revised Impact Assessment passed at all.

Stringent and effective rules already exist within the EU governing material from Syria and Iraq, while other regulations already address illicit material from anywhere else in the world. Why do we need yet more and inappropriate legislation that will only serve to hamstring the legitimate market?

How can we have confidence in the EU’s leading governing body if this is the way it conducts itself?